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Juvenile's records not protected by counselor/client privilege

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The Howard Superior Court erred in finding that the counselor/client privilege prevented the admission of a son’s counseling records during a custody modification hearing, the Indiana Court of Appeals ruled today.

The trial court ruled that W.B.’s counseling records, which included his counselor’s notes, summaries, risk assessments, and status reports, were privileged and that no exception to the counselor/client privilege applied.

W.B. was adjudicated a delinquent after he admitted to a sexual battery charge against his sister A.B. A.B. and W.B. lived with their mother who had physical custody of the children after the mother and father divorced. When the father learned W.B. had touched his sister inappropriately, he reported it to Child Protective Services and A.B. moved in with her maternal grandparents due to a no-contact order between the siblings.

W.B. went to counseling, in which his social worker found he remained at a high risk to re-offend. W.B. was eventually discharged from treatment, his probation ended, and the no-contact order ended. A.B. moved back in to live with her mother and brother. That’s when the father petitioned for modification of custody seeking physical custody of A.B. due to the threat of potential molestations by W.B.

The trial court denied father’s petition to modify custody, finding A.B. is older and in school, and while the charges are substantial, they aren’t enough to modify custody.

The counselor/client privilege is set forth in Indiana Code Section 25-23.6-6-1, but it is subject to exceptions. I.C. Section 31-32-11-1 abrogates the privilege in proceedings resulting from reports of child abuse.

“The statute has been applied for the most part in criminal prosecutions,” Judge Nancy Vaidik wrote in J.B. v. E.B. No.34A04-1002-DR-110. “But Section 31-32-11-1 is worded broadly and abrogates the enumerated privileges in ‘any judicial proceeding’ resulting from a report of child abuse or ‘relating to the subject matter of the report.’”   

A.B. reported that her brother touched her inappropriately, which led to W.B.’s delinquency proceedings and the father’s petition to modify custody. He wants to prevent further abuse of A.B., and the privileged information concerns the brother’s potential to re-offend.

“In line with the foregoing, we conclude that the instant case is a proceeding within the purview of Section 31-32-11-1 and in which the counselor/client privilege does not apply,” she wrote. “We therefore find the trial court erred in excluding W.B.’s counseling records on the basis of privilege. We also cannot say the error was harmless, given the content of W.B.’s counseling records and the limited grounds on which the trial court based its ruling.”

The case was remanded for further proceedings.
 

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  1. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

  2. Both sites mentioned in the article appear to be nonfunctional to date (March 28, 2017). http://indianalegalanswers.org/ returns a message stating the "server is taking too long to respond" and http://www.abafreelegalasnswers.org/ "can't find the server". Although this does not surprise me, it is disheartening to know that access to the judicial branch of government remains out of reach for too many citizens (for procedural rather than meritorious reasons) of Indiana. Any updates regarding this story?

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